Citation Nr: 0828664
Decision Date: 08/22/08 Archive Date: 09/02/08
DOCKET NO. 02-00 096A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for a stomach disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John Kitlas, Counsel
INTRODUCTION
The veteran served on active duty from June 1966 to May 1969,
and from January 1991 to August 1991. Further, the record
indicates he had additional service in the National Guard.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from a September 2000 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma, which denied the claim.
The veteran testified at a hearing before the undersigned
Veterans Law Judge in November 2002. A transcript of this
hearing has been associated with the veteran's VA claims
folder.
In September 2003, March 2005, and January 2007, the Board
remanded the case for additional development. The case has
now been returned to the Board for further appellate
consideration. As a preliminary matter, the Board finds that
the remand directives have been satisfied, and, thus, a new
remand is not required to comply with the holding of Stegall
v. West, 11 Vet. App. 268 (1998).
FINDINGS OF FACT
1. All reasonable development and notification necessary for
the equitable disposition of the instant case has been
completed.
2. The preponderance of the medical and other evidence of
record is against a finding that the veteran's stomach
disability is causally related to active duty, to include as
secondary to a service-connected disability.
CONCLUSION OF LAW
A stomach disability was not incurred in or aggravated by the
veteran's active service, nor is it secondary to a service-
connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes at the outset that, in accord with the
Veterans Claims Assistance Act of 2000 (VCAA), VA has an
obligation to notify claimants what information or evidence
is needed in order to substantiate a claim, as well as a duty
to assist claimants by making reasonable efforts to get the
evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and
5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
The United States Court of Appeals for Veterans Claims
(Court) has held that adequate notice, as required by 38
U.S.C. § 5103(a), must be provided to a claimant before the
initial unfavorable agency of original jurisdiction decision
on a claim for VA benefits. Pelegrini v. Principi, 18 Vet.
App. 112, 120 (2004). However, because the VCAA was enacted
after the initial adjudication of the veteran's claim by the
RO, it was impossible to provide notice of the VCAA before
the initial adjudication in that claim. Indeed, VA's General
Counsel has held that the failure to do so under such
circumstances does not constitute error. See VAOGCPREC 7-
2004. Under such circumstances, the United States Court of
Appeals for the Federal Circuit has indicated that this
defect can be remedied by a fully compliant VCAA notice
issued prior to a readjudication of the claim. Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
In this case, the veteran was sent VCAA-compliant
notification by letters dated in August 2001, August 2002,
April 2003, March 2005, and February 2007, followed by
readjudication of the claim via the November 2001 Statement
of the Case (SOC) and Supplemental SOCs beginning in
September 2004. Taken together, these letters informed the
veteran of what was necessary to substantiate his claim, what
information and evidence he must submit, what information and
evidence will be obtained by VA, and the need for the veteran
to advise VA of or to submit any evidence in his possession
that was relevant to the case. As such, this correspondence
fully complied with the notice requirements of 38 U.S.C. §
5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's
holding in Quartuccio, supra. Further, the February 2007
letter contained the specific information regarding
disability rating(s) and effective date(s) as mandated by the
Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).
(The Board notes that 38 C.F.R. § 3.159 was revised,
effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30,
2008). The amendments apply to applications for benefits
pending before VA on, or filed after, May 30, 2008. The
amendments, among other things, removed the notice provision
requiring VA to request the veteran to provide any evidence
in the veteran's possession that pertains to the claim. See
38 C.F.R. § 3.159(b)(1).)
All the law requires is that the duty to notify is satisfied
and that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error). In view of the
foregoing, the Board finds that the veteran was notified and
aware of the evidence needed to substantiate his claim and
the avenues through which he might obtain such evidence, and
of the allocation of responsibilities between himself and VA
in obtaining such evidence. Accordingly, there is no further
duty to notify.
In addition, the duty to assist the veteran has been
satisfied in this case. All relevant medical records are in
the claims file. Nothing in the record indicates the veteran
has identified the existence of any relevant evidence that
has not been obtained or requested. He has had the
opportunity to present evidence and argument in support of
his claim, to include at the November 2002 Board hearing.
Further, he was accorded VA medical examinations in March
2004, July 2006 and February 2007. Consequently, the Board
concludes that the duty to assist has been satisfied.
The Board observes that it has thoroughly reviewed the record
in conjunction with this case. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence submitted by the appellant or on his
behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed.
Cir. 2000) (the Board must review the entire record, but does
not have to discuss each piece of evidence). Rather, the
Board's analysis below will focus specifically on what the
evidence shows, or fails to show, on the claim. See
Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting
that the Board must analyze the credibility and probative
value of the evidence, account for the evidence which it
finds to be persuasive or unpersuasive, and provide the
reasons for its rejection of any material evidence favorable
to the claimant).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the benefit of the doubt shall be given to the
claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt
arises regarding service origin, such doubt will be resolved
in the favor of the claimant. Reasonable doubt is doubt which
exists because of an approximate balance of positive and
negative evidence which does not satisfactorily prove or
disprove the claim. 38 C.F.R. § 3.102. The question is
whether the evidence supports the claim or is in relative
equipoise, with the claimant prevailing in either event, or
whether a fair preponderance of the evidence is against the
claim, in which event the claim must be denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 54 (1990).
In this, and in other cases, only independent medical
evidence may be considered to support medical findings. The
Board is not free to substitute its own judgment for that of
such an expert. See Colvin v. Derwinski, 1 Vet. App. 171,
175 (1991). Here, nothing on file shows that the veteran has
the requisite knowledge, skill, experience, training, or
education to render a medical opinion. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his
contentions cannot constitute competent medical evidence.
38 C.F.R. § 3.159(a)(1).
The veteran contends, to include in a July 2000 statement and
at his November 2002 Board hearing, that his stomach
disability began in service in 1967. He has also indicated
that it developed due to high does of Motrin/Ibuprofen for
his service-connected bilateral foot disability.
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Evidence of continuity of symptomatology from the time of
service until the present is required where the chronicity of
a condition manifested during service either has not been
established or might reasonably be questioned. 38 C.F.R. §
3.303(b). Regulations also provide that service connection
may be granted for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disability was incurred in service.
38 C.F.R. § 3.303(d).
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419
(1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548
(1992)). Where the determinative issue involves medical
causation or a medical diagnosis, there must be competent
medical evidence to the effect that the claim is plausible;
lay assertions of medical status do not constitute competent
medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992).
Under section 3.310(a) of VA regulations, service connection
may be established on a secondary basis for a disability
which is proximately due to or the result of
service-connected disease or injury. 38 C.F.R. § 3.310(a).
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability
exists and (2) that the current disability was either (a)
proximately caused by or (b) proximately aggravated by a
service-connected disability. Allen v. Brown, 7 Vet. App.
439, 448 (1995) (en banc). Where a service-connected
disability aggravates a nonservice-connected condition, a
veteran may be compensated for the degree of disability (but
only that degree) over and above the degree of disability
existing prior to the aggravation. Allen, 7 Vet. App. at
448.
Temporary or intermittent flare-ups of symptoms of a
condition, alone, do not constitute sufficient evidence of
aggravation unless the underlying condition worsened. Cf.
Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002);
Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).
The veteran's service treatment records confirm that he was
seen for gastrointestinal complaints in June 1967 and March
1968. However, no chronic stomach disability appears to have
been diagnosed while on active service. In fact, his abdomen
and viscera were clinically evaluated as normal, in pertinent
part, on his release from active duty examination, as well as
subsequent National Guard examinations in, October 1975,
January 1981, October 1984, and his 1991 expiration of term
of service examination. See Mense v. Derwinski, 1 Vet. App.
354, 356 (1991) (The normal medical findings at the time of
separation from service ... are probative evidence against the
claim.).
The post-service medical records reflect the veteran was
diagnosed as having gastrointestinal reflux disease (GERD) in
2000. Subsequent records dated in 2004 and 2006 show
findings of chronic gastritis.
As to possible etiology, no competent medical opinion is of
record which relates current disability to the veteran's
active service. The March 2004 VA examiner did opine that
the veteran's stomach disability was less likely than not due
to high doses of Motrin for the service-connected bilateral
foot disability. However, as noted in the March 2005 remand,
the veteran's representative contended that this examination
was inadequate, and questioned the rationale for the
examiner's opinion. Consequently, this claim was remanded
for a new examination. Unfortunately, the July 2006 VA
examiner merely noted, in regard to etiology, that the
veteran's stomach condition was chronic because it had been
around "for many years." Therefore, the Board once again
remanded this case in January 2007 for a new examination to
address whether it was at least as likely as not that any
current gastrointestinal disability was caused by service or
was otherwise related thereto, or caused by or chronically
worsened by medications, including Ibuprofen, used to treat
the veteran's service-connected bilateral foot disability.
The veteran subsequently underwent a new VA medical
examination in February 2007 in accord with the Board's
remand directives. Following evaluation of the veteran and
review of his VA claims folder, the examiner diagnosed
chronic gastritis with Helicobacter pylori infection.
Further, the examiner opined that the stomach condition had
been there even before the veteran started to take Ibuprofen,
and that the current gastrointestinal condition was not
likely caused by the military service or not worsened by
medication including the Ibuprofen because the stomach
condition was due to Helicobacter pylori infection.
The veteran's representative contended in a July 2008
statement that the February 2007 VA examiner's opinion lacked
the scientific basis needed to buttress the conclusions
reached, and, consequently, should be assigned very limited,
if any, probative value. However, besides this general
assertion, neither the veteran nor his representative have
cited to any specific defect in the VA examiner's opinion,
nor have they cited to or submitted any competent medical
evidence which refutes the findings of this VA examiner.
Inasmuch as the VA examiner's opinion was based upon both an
evaluation of the veteran and review of his VA claims folder,
and there is no contrary medical opinion, the Board finds
that it is entitled to the most weight of the evidence of
record regarding the etiology of the veteran's current
stomach disability. Consequently, the Board finds that the
preponderance of the medical and other evidence of record is
against a finding that the veteran's stomach disability is
causally related to active duty, to include as secondary to a
service-connected disability.
As the preponderance of the evidence is against the claim,
the benefit of the doubt doctrine is not for application in
the instant case. See generally Gilbert, supra; see also
Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).
In view of the foregoing, the benefit sought on appeal must
be denied.
ORDER
Entitlement to service connection for a stomach disability is
denied.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs